The provisional patent process allows an inventor to obtain patent protection for one year while he or she prepares a standard patent application. This type of temporary patent was introduced in 1995 in the United States. These applications do not turn into actual patents and are not examined by the U.S. Patent and Trademark Office (USPTO). 

Benefits of the Provisional Patent Process

If the holder of the provisional patent does not file a standard patent application within one year after filing the provisional patent application, the patent protection expires. When the standard application is filed within a year, it is treated as if it were filed on the date the provisional patent application was filed. This can help establish the patent holder as the first inventor of the creation in question. This is especially important in the U.S., where the first person to file a patent application is considered the owner of the intellectual property (IP) in question. In addition, this allows the patent owner to extend the life of his or her patent to 21 years from the standard 20-year duration.

Provisional patent applications carry lower fees than the standard application and do not require the cost of filing patent claims or disclosing prior art. For this reason, inventors typically draft their own patent description for the provisional application and hire a patent attorney to draft the standard application.

Provisional patent applications are typically subject to the 75-25 rule of thumb. This means that the first 75 percent of the process takes 25 percent of the time to complete and the final 25 percent of the process takes 75 percent of the time. You can expedite the standard application process by providing supplemental documents and disclosures, including but not limited to drawings, sketches, and photographs.

Once the provisional patent application has been filed, you can market your invention without losing patent protection. This can help you raise capital to proceed with additional patent development. 

Provisional Patent Requirements

The provisional patent application must include a written description of the invention that typically covers:

  • Its name
  • Purpose or purposes
  • Drawings and descriptions for each
  • Steps or components
  • How the components or process works
  • How the completed invention works
  • Advantages of the invention

The application must also include:

  • All drawings needed to comprehend the workings and purpose of the invention
  • The names of all inventors
  • The filing fee, typically $125
  • An identifying cover sheet

Drawings are of particular importance if you will eventually file a utility patent application. When you take that step, an examining attorney will compare the utility patent drawings to those filed with the provisional application and must determine that they constitute the same invention. 

Illustrations recommended for inclusion by the USPTO include:

  • All views of the invention
  • Labeling numbers
  • Flowcharts
  • Schematics
  • Straight or dashed lines
  • Color or black and white photographs
  • Illustrations, either hand-drawn or computer generated

Filing a Provisional Patent Application Online

To apply for a provisional patent, visit the USPTO website and click on the link titled "File Patents Online." Select the option for "Unregistered Filer." Enter your first and last name and email address, then select "Provisional" and "Utility" for the patent types. 

The next screen will ask for the name of your invention and of the main inventor. Next, you'll fill out your mailing address. You can then upload PDF files as supporting documents. Make sure these have uploaded correctly before moving on to the next step.

Next, you'll be asked to calculate your filing fee, which can be paid online. You'll have the opportunity to review your entire application before clicking Submit. You will receive an official filing receipt marked Patent Pending within three to five weeks of your submission.

When to File

It may be prudent to file a provisional patent application as soon as your invention can be tangibly described. You can make improvements and file an additional provisional patent or a standard patent application when the time comes. All provisional patents filed within 12 months can be combined into one standard application. However, additional material cannot be added to the latter once it is filed, making the provisional patent an ideal option when you are still refining your invention.

If you need help with the provisional patent process, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.